Closing Time for the Open Internet

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[Commentary] Because of a faulty legal strategy used by the Federal Communications Commission, the US Court of Appeals for the DC Circuit struck down the law enforcing this principle, leaving the Internet and the FCC in uncharted territory.

What could possibly have convinced the agency to pursue a legal strategy that any law student could see was dubious? As in any big mistake, there were compounding errors. Members of Congress threatened to strip the FCC of some of its powers if it enacted the rules with the full weight of its legal authority. AT&T warned that it would cancel its ongoing effort to become a cable company, threatening to tar the agency with job losses. One senior FCC staffer said that it would have unduly affected the stock prices of the telecom firms. The agency also had a Kool-Aid-drinking problem; it started to believe its own legal arguments, however weak. Altogether, it was a cowardly reaction to empty political threats.

Tom Wheeler, the new chairman of the FCC, now has the unfortunate task of dealing with strategic errors made by his predecessor. Restoring the agency’s long-standing authority over broadband telecommunications is much simpler than it appears. Chairman Wheeler needs only to reaffirm that, for Internet firms that want to send information to customers, broadband is a “telecommunications service,” meaning that the FCC has the authority to regulate it. He has both the time and the votes to do so. It is possible that Chairman Wheeler will do nothing, confirming the suspicions of his critics. But it is hard to imagine that he wants to be the man at the helm as the FCC fades, pricing wars break out, and the Internet stagnates into a version of cable television. To be sure, in the short term, one can attract plenty of praise within Washington for not doing one’s job. But Chairman Wheeler has been around long enough to understand both the importance of legacy and the judgment of history.

[Wu is a professor at Columbia Law School]


Closing Time for the Open Internet